This article was originally published in Law360 on August 27, 2026 and is reposted with permission.
The High Court's decision on Feb. 6 in Darchem Engineering Ltd. v. Bouygues Travaux Publics provides important guidance on a recurring but often underexamined issue: whether individual members of an unincorporated joint venture, or JV, can pursue claims in their own name against an employer.1
JVs are a cornerstone of major construction and infrastructure projects, enabling parties to combine expertise, resources and risk. Yet, despite their commercial ubiquity, unincorporated JVs remain legally fragile structures.
While the JV agreement governs the relationship between the co-venturers, it is typically the JV — rather than its individual members — that operates as the contractual counterparty to the outside world.
This structural tension gives rise to difficult questions when the relationship fractures. If one JV member withdraws or refuses to participate, can the remaining member or members step into the breach and pursue claims alone? Do they have standing to commence proceedings or enforce decisions in their own name? Does the absence of one participant undermine the JV's ability to act altogether?
The Darchem decision confronts these issues directly, offering a clear reminder that, under English law, the answers lie not in commercial convenience, but in the careful construction of the underlying contract.
Background
The dispute arose from a new engineering contract subcontract at the Hinkley Point C nuclear project. The claimant, Darchem Engineering, was part of an unincorporated JV. It sought to enforce an adjudication decision of approximately £23.9 million ($32.2 million) against the main contractor — also an unincorporated JV.
Darchem brought three sets of adjudication proceedings alone, alleging it was "acting jointly and severally as the Subcontractor." The third adjudication was the subject of the enforcement proceedings in question.
The respondents raised the jurisdiction objection: Darchem was not the subcontractor — the JV was. Darchem was therefore not a party to the contract and therefore not entitled to pursue adjudication.
While the jurisdiction objection was rejected by the adjudicator, the objection was maintained during the enforcement proceedings. The question considered by the court was whether one entity in an unincorporated JV was entitled to bring proceedings in its own name, rather than together with the other company in the JV.
High Court Judgment
Judge Adam Constable agreed with the respondent and refused to enforce the decision. His reasoning provides a helpful road map for how English law considers a JV's standing.
Judge Constable considered that whether one party to an unincorporated JV could pursue a claim under a contract was one of contractual construction, which requires a determination of the "the objective meaning of the language by which the parties have chosen to express their agreement."
As Justice David Neuberger confirmed in 2015 in Arnold v. Britton, this means considering the following matters2:
The natural and ordinary meaning of the clause;
Any other relevant provisions of the contract;
The overall purpose of the clause and the contract;
The facts and circumstances known or assumed by the parties at the time the contract was executed; and
Commercial common sense, but disregarding subjective evidence of any party's intentions.
As Judge Constable clarified, it also means:
Reading the provisions of the contract together in a manner that, so far as possible, avoids inconsistencies between different parts in the assumption that the parties had intended to express their intentions in a coherent and consistent way; and
Except in exceptional circumstances, applying definitions, as agreed by the parties in the contract.
In reviewing the contract, the court identified the following issues.
Bilateral Versus Multilateral
The contract indicated that it was intended to be bilateral, not multilateral, with the conditions defining "parties" as "the contractor and the subcontractor." Also, the language used, i.e., "either," "both" and "the other," was consistent with there being a pair of entities, not a crowd.
Inference From Specificity
The contract identified where the word "party" was intended to address each constituent member of the JV, rather than the JV itself. The inference being that everywhere else, "party" meant the JV as a collective.
Industry Standard Wording
The commonly used wording "Where either Party constitutes (under applicable laws) a joint venture, consortium or other unincorporated grouping of two or more persons the liability of such persons to the other Party under this Agreement shall be joint and several" is consistent with there being only two parties: the employer and the JV.
Background Principles
In the context of unincorporated joint ventures, according to Construction Law, 4th edn, "if a joint venture is not incorporated it has no separate legal identity distinct from those of the venturers themselves."3 As the court reasoned, each constituent entity of the JV had to execute the contract.
Substance Over Signature
The execution block was not sufficient for Darchem to be considered a party for the purposes of the subcontract when taken in the whole and considered in light of the wording: "[t]he Parties are the Contractor and the Subcontractor."
The court also identified practical implications of finding that unincorporated JV members could act alone. Indeed, if each JV member could act alone, an employer could face multiple, concurrent adjudications on identical issues, each before a different adjudicator, leading to inconsistent results and a procedural quagmire.
Practical Considerations
Many questions arise from this scenario. What becomes of the damages claim? Can the participating JV members pursue the full amounts owed to the joint venture even if part of those sums would ultimately be attributable to the absent member or members?
If it is determined that each unincorporated JV member may bring proceedings individually, would any resulting decision, award or judgment bind the nonparticipating member? These issues also have practical implications for settlement: If only one JV member remains engaged, can a settlement ever effectively address the risk of the absent member reemerging later with competing claims?
Although the judgment relates to adjudication, the principles apply to international arbitration and litigation. There may well be mechanisms in the applicable rules that permit consolidation or concurrency of proceedings — such as the current London Court of International Arbitration or International Chamber of Commerce Rules — but that is not a simple matter and can lead to costly satellite litigation.
This decision also may have practical implications during the project. The court identified that where there is clear language, "party" and "parties" are references to the JV, rather than the individual members, and the less likely it is that the objective intention of the subcontract was that each constituent part could act severally, as opposed merely to having several liability.
So, what happens if one JV member decides to walk away or ceases to exist? Could that amount to an event entitling the employer to terminate the contract?
Unincorporated JVs are common in large infrastructure projects. However, they are not limited to such projects. Premeditated and thought-out risk allocation is key.
First, to avoid jurisdictional disputes later, parties need to agree who are the intended parties to the contract, what are their rights, and who can enforce them. They should consider how to deal with res judicata, i.e., there has been a final judgment and the matter cannot be raised again, parallel proceedings, consolidation and joinder when drafting an agreement involving an unincorporated JV.
Second, for contractors, it may be beneficial to explicitly provide that the lead member has authority to bring actions under the JV's behalf. This is seen, for example, in the 2017 International Federation of Consulting Engineers Red Book, which specifies that the "JV leader shall have authority to bind the Contractor and each member of the Contractor."
Further, especially for projects that are to run over large durations, contractors should negotiate for flexibility for changes in the JV team during contract negotiations to avoid being later being found in default when one member withdraws from the project.
Third, in terms of project management, employers should consider the commercial hierarchy within a JV. If a minor member becomes insolvent or withdraws, it may be a mere administrative hurdle. However, if the substantial lead partner, whose technical or financial credentials secured the bid, exits, it creates a fundamental shift in risk.
To avoid the employer having to accept a minor member taking over the scopes of the other JV members, contracts should distinguish between these scenarios, specifying where a withdrawal is a curable breach and where it constitutes a material change in control or a termination event that goes to the heart of the agreement.
The Red Book provides helpful guidance in this respect, stating that "neither the members nor (if known) the scope and parts of the Works to be carried out by each member… shall be altered without the prior consent of the Employer."
Fourth, subcontractors and other third parties should be mindful of the structural limitations of unincorporated JVs, particularly in relation to the main contractor's ability to pursue upstream claims against the employer. Where the JV is unable to act — whether due to internal disagreement or the absence of a participating member — this may impede the advancement of employer-facing claims. In turn, this can compromise a subcontractor's ability to recover sums due, especially where payment depends on pass-through or back-to-back recovery mechanisms.
Conclusion
The decision in Darchem is a reminder that, under English law, unincorporated joint ventures are creatures of contract, not separate legal persons. The ability of any individual JV member to act, whether in adjudication, arbitration or litigation, will turn on the objective construction of the underlying contract.
The judgment underscores a critical distinction that is often overlooked in practice: Joint and several liability does not equate to joint and several rights. Absent clear drafting, the party to the contract may be the JV as a collective, even if that collective has no independent legal personality. In such circumstances, unilateral action by one member risks jurisdictional failure, rendering even a successful adjudication decision unenforceable.
The decision emphasizes the discipline in drafting. It reinforces that parties who choose the flexibility of an unincorporated JV must accept the corresponding need for precision in defining how that vehicle operates — both during the project and when things go wrong.
Darchem Engineering Ltd. v Bouygues Travaux Publics & Anor [2026] EWHC 220 (TCC).
In Arnold v. Britton [2015] UKSC 36.
See Julian Bailey's Construction Law (4th edn, 2024) at 2.108.
